Section 120 of the Trade and Merchandise Marks Act, 1958, which allows for interim injunctions in cases of unjustified threats of infringement proceedings, does not extend to preventing a person from instituting a suit.

DIPAK KUMAR SEN, J.

( 1 ) THE item in dispute in this suit is a drug known as 'amoxycilin Tri-hydrale' hereinafter referred to as the said drug. The plaintiff, a private limited company, has its registered office in Calcutta and carries on the business of manufacture and sale of medicines and pharmaceutical products. The plaintiff's case is that it decided to manufacture medicines from the said drug and on the 13th Feb. , 1976 applied to the Drugs Controller, Government of India for necessary permission. Pursuant to directions of the said authority the plaintiff arranged for clinical trial of the said drug in India in 1976. The trial was successful. The plaintiff thereafter invented the name 'amotid' for the medicine it intended to manufacture from the said drug and applied for registration of the name to the Trade Mark Authorities on the 23rd Dec. , 1978. This application is pending. Subsequent thereto, on the 4th Jan. , 1979 the Drug Controller, Government of India approved manufacture of medicines from the said drug in India and on the 11th Jan. , 1979 granted permission to the plaintiff to manufacture medicines from the said drug.

( 2 ) THEREAFTER, on the 25th Jan. , 1979, the plaintiff applied to the Bureau of Industrial Costs and Prices, Government of jndia for approval of prices of medicines to be manufactured from the said drug under the Drugs (Prices and Control) Order 1970. The plaintiff also applied to the Directorate of Drugs Control, Government of West Hen-gal for permission to manufacture medicine from the said drugs on the 31st Jan. , 1979. Such permission was granted to the plaintiff on the 8th March, 1979. On the 29th March, 1979 the plaintiff informed the Drugs Controller, West Bengal that the said medicine was to be sold under the trade mark 'amotid'. This proposal was accepted by the Drug Directorate of West Bengal on the 23rd July, 1979.

( 3 ) THEREAFTER on the I2th Sep. , 1979 prices of the medicines to be prepared from the said drug as proposed by the plaintiff were approved by the Bureau of Industrial Costs and Prices and in Nov. , 1979 the plaintiff started manufacturing medicine under the name "amotid" for commercial purposes and proceeded to advertise the product. The plaintiff commenced sales of the said medicines in open market all over India on and from the 4th Feb. , 1980 excepting the States of Jammu and Kashmir, Himachal Pradesh, Gujarat and Madhya Pradesh.

( 4 ) THE defendant is a partnership firm also carrying on the business of manufacture and sale of medicine and pharmaceutical products. It is the case of the defendant that it intended to use the drug Amoxycilin for manufacture of medicine and also coined and invented the trade mark 'amotid' for its proposed products. The defendant applied to the Director, Drugs Control Administration, Gujarat Slate, Ahmedabad for permission to manufacture medicines under the mark 'amotid' and on the 3rd November 1978 obtained such permission. The defendant also applied to the Drugs Controller, Government of India for permission to manufacture medicines out of the said drug and obtained such permission on the 15th February 1979. On the same date the defendant was granted permission to im-port the said drug. On the 12th April, 1979 the defendant obtained from the Director, Drugs Control Administration, Gujarat permission to manufacture out of the said drug medicine under the mark 'amolid' and started such manufacture on and from the 21st June 1979. It is the defendant's case that it sells its products in Gujarat, Madhya Pradesh and Rajasthan.

( 5 ) THIS suit was instituted after a letter dated the 19th February 1980 was written on behalf of the defendant to the plaintiff alleging that since June 1979 the defendant had been selling medicines under the trade mark 'amotid' which was invented by the defendant in 1978. It was further alleged that the plaintiff was selling products wrongfully under a trade mark identical and/or similar to the mark used by the

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